Navigator Systems Ltd Terms and Conditions
All Software products sold by Navigator Systems are sold on a business to business basis and covered by the licence agreement shown below.
End-user Licence Agreement
Important : Please read carefully
This is a legal agreement between you, and Navigator Systems Limited (the Licensor). By purchasing a licence to the software you agree to be bound by the terms of this Agreement in respect of the Software. If you do not accept these terms, you may not install, copy or otherwise use the Software but may, within 28 days of purchase, return the Software and the Copy Protection Token to the Licensor for a full refund of any Licence Fees paid in respect of the Software.
In this Agreement unless inconsistent with the context or otherwise specified the following definitions will apply:
Authorised Number means the number of Client Computers which may access the Software at any one time, which number has been notified by the Licensor in the Order Confirmation Notice as the same may be varied in accordance with Clause 3.
Client Computers means any computers other than the Network Server used for your own internal business purposes and which access the Copy Protection Token, whether via a local area network, wide area network or the internet.
Copy Protection Token means the software copy protection device supplied to you by the Licensor for use with the Software.
Documentation means the opera"ting" manuals, user instructions and other related materials supplied to you by the Licensor (whether physically or by electronic means) in respect of the Software including any part or copy of it.
Licence Fee means the fees payable by you in respect of the Licensed Materials as specified in the Licensor's invoice.
Licensed Materials means the Software, the Copy Protection Token, the Documentation and the Media.
Media means the carrier media on which the Software and the Documentation are recorded or printed and delivered to the Licensee.
Network Server means the computer that the Copy Protection Token is installed on.
Order Confirmation Notice means the order confirmation notice supplied by the Licensor with the Licensed Materials.
Software means this computer program(s) in object code form only together with any modifications or upgrades and any copies thereof but excluding all source code and all preparatory design material.
2. Grant of licence
Subject to the terms of the Agreement and provided that you have paid the Licence Fee and the Copy Protection Token is correctly installed and running on the Network Server, the Licensor hereby grants you the non-exclusive and non-assignable right to install and run the Software on the Network Server and/or the Client Computers provided that the number of copies of the Software running at any one time does not exceed the Authorised Number.
The Authorised Number may only be varied with the Licensor's written agreement and subject to the payment by you of any applicable upgrade fees.
- You are responsible for the installation of the Software in accordance with the Documentation and any instructions issued by the Licensor.
- Risk in the Media will pass to you on installation.
5. Permitted use
- You shall install and run the Copy Protection Token on the Network Server. You shall not adapt or amend the Copy Protection Token and shall not interfere in any manner with the current operation of the Copy Protection Token with the Software.
- You may only use the Licensed Materials for processing your own data for your own internal business purposes. You shall not use or attempt to use the Licensed Materials or any of the output of the Software or permit any third party to do so:
- to provide a data processing or bureau service to any third party by way of trade or otherwise; or
- contrary to any other restriction stated in this Agreement.
- Save only to the extent that the same cannot be prevented by law, you shall not:
- translate or adapt the Licensed Materials for any purpose nor arrange or create derivative works based on the Licensed Materials without the Licensor's express written consent.
- make for any purpose, including (without limitation) for error, correction, any alterations, modifications, additions or enhancements to the Software except as specifically described in the Documentation nor permit the whole or any part of the Software to be combined with or become incorporated in any other program except to the extent permitted by clause 7 without the Licensor's prior written consent.
- decompile, reverse-engineer, or disassemble the Software or permit others to do so.
- You shall not transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Licensed Materials to any other person.
- You may transfer the Software to another Network Server controlled by you provided that the Software is not installed on more than one Network Server at any one time.
6. Extent of permitted reproduction
- You are permitted to make one back-up copy of the Software. Such copy will be the property of the Licensor.
- You shall not make or permit others to make any copies of the Documentation without the Licensor's prior written consent.
- You shall keep such accurate and up to date written records of your use, copying and disclosure of the Software as the Licensor may from time to time reasonably require in writing or, in default of any specific requirement by the Licensor, then in accordance with good data processing practice and shall allow the Licensor, on request, to inspect and take copies of such records from time to time.
- You shall make regular back-up copies of all data that you use in conjunction with the Software in accordance with good data processing practice.
7. Proprietary rights
- Nothing in this Agreement shall assign or otherwise transfer to you any title, copyright or other intellectual property or proprietary rights in the Licensed Materials or any copies of them.
- You agree not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice on or in the Software or which are visible during its operation or which are in the Media or on any Documentation. You shall incorporate such proprietary markings in any back-up copies.
- You shall notify the Licensor immediately if you become aware of any unauthorised access to, use or copying of any part of the Licensed Materials by any person.
- You shall permit the Licensor to check the use of the Licensed Materials by you at all reasonable times. The Licensor may upon reasonable notice send its representatives to any of your premises to verify compliance with this Agreement and you irrevocably consent to the Licensor's representative entering your business premises and any other of your premises for this purpose.
- You acknowledge that the Licensed Materials contain confidential information of the Licensor and/or of third parties. You undertake to treat as confidential and keep secret all information contained in or otherwise received from the Licensor in connection with the Licensed Materials (collectively referred to as the Confidential Information) and shall not use the same for purposes other than using the Software in accordance with this Agreement. You shall effect and maintain adequate security measures to safeguard the Licensed Materials from unauthorised access, use or copying.
- You shall not without the Licensor's prior written consent communicate or disclose any part of the Confidential Information to any person except:
- only to those employees on a need to know basis who are directly involved in the use of the Software;
- your auditors and professional advisers.
- You undertake to ensure prior to disclosure of any Confidential Information that all persons or bodies mentioned in clause 8.2 are aware that the Confidential Information is confidential and that they owe a duty of confidence to the Licensor. You will indemnify the Licensor against any loss or damage which the Licensor sustains or incurs as a result of your failing to comply with such undertaking.
- Any ideas and principles determined during the course of observing, studying or testing the functions of the Software constitute Confidential Information subject to this clause 8.
- The provisions of this clause 8 will not apply to any Confidential Information which is or becomes public knowledge other than as a result of your conduct.
- This clause 8 will continue in force notwithstanding the termination of this Agreement for any reason.
- You acknowledge that the Licensor may use and exploit any ideas or suggestions provided to you to the Licensor in respect of the Software without payment or any further licence being required.
9. Defects warranty
- The Licensor warrants that:
- the Software when properly used will substantially provide the facilities and functions as described in the Documentation; and
- the Media on which the Software is furnished will be free from defects in materials and workmanship for a period of 90 days from the date of purchase. The Licensor does not warrant that the operation of the Software will be uninterrupted or error free.
- The Licensor's obligation and your exclusive remedy under the warranty given in clause 9.1 is limited to the Licensor at its own expense using all reasonable endeavours to rectify any non-conformance with the warranty by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time or at the Licensor's option replacing the Software or defective Media in whole or in part.
- The Licensor will have no liability or obligation under the warranty given in this clause 9 unless it has received written notice from you of any non-conformance with the warranty within 90 days from the date of purchase and provided that in the reasonable opinion of the Licensor the Licensed Materials have not been subjected to misuse, damage or excessive wear.
- You acknowledge that the Licensed Materials have not been prepared to meet your individual requirements and that it is your responsibility to ensure that the facilities and functions of the Software meet your requirements.
- The Licensor will not be liable for any failure of the Software to provide any facility or function not described in the Documentation or for any failure of the Software attributable to any modification (whether by alteration, deletion, addition or otherwise) to the Software or the Client Computers by either you in default of your obligations under this Agreement or by persons other than you or by combination of the Software with other software or equipment without the Licensor's express prior written consent.
- If a problem notified in accordance with clause 9.3 is found upon investigation not to be the Licensor's responsibility under the provisions of this clause 9, the Licensor may charge you for all reasonable costs and expenses incurred by the Licensor in the course of or in consequence of such investigation.
10. Limitation of liability
- You acknowledge that the Licensor's obligations and liabilities in respect of the Licensed Materials are exhaustively defined in this Agreement. You agree that the express obligations and warranties made by the Licensor in this Agreement are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of the Licensed Materials or any part of them.
- You are responsible for the consequences of any use of the Licensed Materials. The Licensor will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, whether arising under contract, tort (including negligence), statutory duty or otherwise including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if the Licensor has been advised of their possibility.
- The Licensor does not exclude any liability to the extent that it results from the negligence of the Licensor or its employees for death or personal injury.
- The Licensor's total liability (whether in contract, tort (including negligence), statutory duty, or otherwise) under or in connection with this Agreement and any other agreement with the Licensee relating to the Software or based on any claim for indemnity or contribution will not exceed in aggregate a sum equal to 125% of the Licence Fee paid by you.
- You agree that except as expressly provided in clauses 9 and 11 and this clause 10 the Licensor will not be under any liability of any kind whatever and however caused arising directly or indirectly in connection with this Agreement. You will indemnify the Licensor in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from your possession, operation or use of the Licensed Materials except and in so far as the Licensor is liable as expressly provided in this Agreement.
- You acknowledge and agree that the allocation of risk contained in this clause 10 is reflected in the Licence Fee and is also a recognition of the fact that inter alia, the Software cannot be tested in every possible combination and it is not within the Licensor's control how and for what purpose the Licensed Materials are used by you.
11. Intellectual property rights indemnity
- Subject to clause 10, the Licensor will indemnify you for its reasonable costs and all damages awarded under any final judgment by a court of competent jurisdiction or agreed by the Licensor in final settlement to the extent the Software as used in accordance with this Agreement and the Documentation infringes the copyright or other intellectual property rights (other than patents) of any third party, provided that:
- such infringement is not caused by or contributed to by your acts other than the use of the Software in accordance with this Agreement and the Documentation;
- the Licensor is promptly notified in writing of the details of the claim;
- the Licensor has sole control of the defence of such claim and all related settlement negotiations; and
- you give the Licensor all reasonable assistance at the Licensor's reasonable expense in connection with such claim.
- If at any time an allegation of infringement of any third party right is made, or in the Licensor's opinion is likely to be made, in respect of the Licensed Materials the Licensor may at its own expense:
- obtain for you the right to continue using the Licensed Materials; or
- modify or replace the Licensed Materials so as to avoid infringement.
- The Licensor will have no liability for any claim of infringement based on:
- use of other than the latest unaltered current release of the Software as supplied to you;
- use or combination of the Software with equipment, programs or data not supplied by the Licensor; or
- your refusal to use modified or replacement Licensed Materials supplied or offered to be supplied pursuant to clause 11.2.
- This clause 11 states the entire liability of the Licensor with respect to the infringement or alleged infringement of any third party intellectual property right of any kind by the Licensed Materials.
- The Licensor may terminate this Agreement with immediate effect by written notice if you:
- expressly or impliedly repudiate this Agreement by refusing or threatening to refuse to comply with any of the provisions of this Agreement;
- fail to comply with any of the provisions of this Agreement and (in the case of a failure capable of being remedied) do not rectify such non-compliance within 14 working days of the Licensor's written notice of it;
- convene any meeting of creditors or pass a resolution for winding up or suffer a petition for winding up;
- have an administrative receiver or receiver appointed over the whole or part of your assets or suffer the appointment of an administrator; or
- being an individual commit any act of bankruptcy or compound with your creditors or come to any arrangements with any creditors.
13. Post termination
- On termination of this Agreement however caused your authorisation to use the Licensed Materials will automatically cease and you undertake immediately to cease to use the Licensed Materials and either return to the Licensor the Licensed Material and all copies thereof, if requested by the Licensor, delete, destroy or otherwise make permanently unusable the Licensed Materials and all copies thereof within your control or possession.
- Within 7 days of the date of termination, you shall through a director or other officer certify to the Licensor in writing that you have fully complied with your obligations under clauses 13.1.
- Termination of this Agreement however caused will not affect the rights of either party under this Agreement which may have accrued up to the date of termination.
14. Force majeure
Neither party will be liable for any delay in performing or failure to perform its obligations (other than a payment obligation) under this Agreement due to any cause outside its reasonable control. Such delay or failure will not constitute a breach of this Agreement and the time for performance of the affected obligation will be extended by such period as is reasonable.
This Agreement is personal to you and you may not sub-licence, assign or otherwise transfer your rights or obligations under this Agreement without the prior written consent of the Licensor.
- All notices which are required to be given under this Agreement will be in writing. Any such notice may be delivered personally by first class pre-paid letter or facsimile transmission and will be deemed to have been received:
- by hand delivery – at the time of delivery;
- by first class post – 48 hours after the date of mailing;
- by facsimile transmission – immediately on transmission provided a confirmatory copy is sent by first class pre-paid post or by hand by the end of the next business day.
If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing. The remedies provide in this Agreement are cumulative and not exclusive of any remedies provided by law.
19. Entire agreement
- This Agreement is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and arrangements, written or oral. You acknowledge that no reliance is placed on any representation made but not embodied in this Agreement. The printed terms and conditions of any purchase order or other correspondence and documents issued by you in connection with this Agreement will not apply unless expressly accepted in writing by the Licensor. Nothing in this Agreement shall exclude any liability of the Licensor for fraudulent misrepresentation.
- Except as otherwise permitted by this Agreement, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
20. Governing law
This Agreement will be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales. Headings have been included for convenience only and will not be used in construing any provision in this Agreement.